Citation Nr: 9916401
Decision Date: 06/15/99 Archive Date: 06/21/99
DOCKET NO. 98-14 559 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Los
Angeles, California
THE ISSUE
Entitlement to a compensable rating for impotency.
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Stephen F. Sylvester, Counsel
INTRODUCTION
The veteran served on active duty from June 1959 to August
1989.
FINDINGS OF FACT
1. In a rating decision of December 1997, the Regional
Office (RO) granted service connection for impotency
secondary to surgery, specifically, a radical retropubic
prostatectomy for service-connected prostate cancer.
2. The veteran's service-connected impotence is presently
characterized by a loss of erectile power, but no penile
deformity.
CONCLUSION OF LAW
An increased (compensable) evaluation for service-connected
impotence is not warranted. 38 U.S.C.A. § 1155 (West 1991 &
Supp. 1998); 38 C.F.R. § 3321(b)(1) and Part 4, Code 7522
(1998).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The veteran in this case seeks an increased evaluation for
service-connected impotence. In pertinent part, it is argued
that current Department of Veterans Affairs (VA) regulations
governing the evaluation of service-connected impotence are
inadequate, in that such regulations fail to adequately
compensate for "the loss of sexual potency inherent in the
surgical removal of a cancerous prostate gland," as well as
"a loss of libido, erectile failures, ejaculatory problems,
lack of stream emissions, and loss of reproductivity."
In response, the Board of Veterans' Appeals (Board) notes
that disability evaluations, in general, are intended to
compensate for the average impairment of earning capacity
resulting from a service-connected disability. They are
primarily determined by comparing objective clinical findings
with the criteria set forth in the rating schedule.
38 U.S.C.A. § 1155 (West 1991 & Supp. 1998); 38 C.F.R. Part 4
(1998).
In the present case, on Department of Veterans Affairs (VA)
genitourinary examination in October 1997, it was noted that,
in September 1992, the veteran was found to have an elevated
PSA (4.7). On subsequent evaluation, a prostate nodule was
discovered, which was biopsied, revealing evidence of
prostate cancer. In June of 1993, the veteran underwent a
total prostatectomy, following which there has been no
recurrence of prostate cancer.
On physical examination, the veteran complained of
intermittent urinary incontinence since the time of his 1993
prostatectomy. Additionally noted was a tendency to
involuntarily lose urine when coughing. According to the
veteran, he had been unable to achieve penile erections since
the time of his 1993 prostatectomy. Examination of the
veteran's abdomen revealed a healed lower midline surgical
scar 13 centimeters in length. The veteran's abdomen was
soft and nontender, and there was no evidence of either
masses or organomegaly.
Following examination, the examiner commented that the
veteran had experienced intermittent urinary incontinence as
well as an inability to achieve penile erections since the
time of his 1993 prostatectomy. Further noted was that
problems with impaired penile erections following
prostatectomy were "common."
Pursuant to applicable law and regulation, a 20 percent
evaluation is warranted where there is evidence of penile
deformity, accompanied by a loss of erectile power.
38 C.F.R. Part 4, Code 7522 (1998). In the present case,
there exists no evidence, nor is it argued, that the veteran
currently suffers from any deformity of the penis. Rather,
it is asserted that the present law and/or regulations are
inadequate, in that they fail to appropriately compensate the
veteran for various other factors associated with his
service-connected impotence.
As noted above, the veteran currently suffers from a loss of
erectile power, but no deformity of the penis. Under such
circumstances, the noncompensable evaluation in effect is
appropriate. 38 C.F.R. Part 4, Code 7522 (1998). As of the
present time, the veteran has failed to offer evidence of
either a marked interference with employment or frequent
periods of hospitalization sufficient to the assignment of an
extraschedular evaluation. 38 C.F.R. § 3.321(b)(1) (1998).
Accordingly, his claim must be denied.
As was discussed at the hearing, the matter whether the
rating code at issue reflects a prudent application of
regulatory authority is beyond the scope of the Board's
jurisdiction.
ORDER
An increased (compensable) evaluation for impotence is
denied.
John E. Ormond, Jr.
Member, Board of Veterans' Appeals